On November 13, Congresswoman Cynthia McKinney (D-GA) introduced HB 3068,
which would let states use proportional representation for U.S. House
elections. It is co-sponsored by Jesse Jackson of Illinois, Chaka Fattah of
Pennsylvania, Eddie Bernice Johnson of Texas, James Clyburn of South
Carolina, and Eva Clayton of North Carolina. All are Democrats.

Congress is in recess until January 27. Now is a good time for anyone to
visit a district office of his or her own member of the U.S. House, and ask
that member to co-sponsor any or all three bills which would help minor
political parties. The other two bills are HR 2477 (to outlaw restrictive
ballot access laws for federal office) and HR 2478 (to insure that general
election debates, if held, must include more than just the major party
nominees).

The Constitution is silent on whether states must use single-member districts
for the House. However, in 1967, Congress passed a law telling the states
that they must use single-member districts. HR 3068 would relax that
restriction. It is titled "The Voters' Choice Act".

If the bill became law, a state with 20 members of the U.S. House could split
itself into 4 equal-population districts, instead of 20 districts as under
current law. It could then provide any system of proportional representation
it wished (including a party-list system), so that a group of voters
comprising as little as seventeen percent of the voters in one of these
districts, could elect one of the five members from a district.

Existing minor parties in the U.S. have not generally shown even 17%
support, in congressional elections. However, it can be argued that some of
them would enjoy this range of support, in a system in which voters
didn't feel their vote might be "wasted".

The bill doesn't force any state to change its system; it merely permits the
states to experiment. It therefore enhances "states rights", which should be
a selling point for the bill.

McKinney introduced a similar bill in 1995, but it would only have permitted
states to use candidate-centered forms of proportional representation
(preference, cumulative and limited), not party-list systems.

The Center for Voting & Democracy is heading the fight for the bill. It
can be reached at PO Bx 60037, Washington DC 20039; (301)-270-4616;
FairVote@compuserve.com or at their web page at
http://www.igc.apc.org/cvd/
The text of the bill is also available.

On December 2, the U.S. Supreme Court ruled unanimously that Louisiana has
been violating federal law ever since 1978, by holding most of its
congressional elections in September or October, rather than November.
Foster v Love, 96-670.

The decision was written by Justice David Souter, and is only seven pages.
An 1872 federal law says "The Tuesday next after the 1st Monday in November,
in every even numbered year, is established as the day for the election, in
each of the States and Territories of the United States, of Representatives
and Delegates to the Congress". Two companion laws covers elections for U.S.
Senate and presidential electors. Souter's opinion points out that the U.S.
Constitution, Article I, §4, gives Congress the authority to regulate
the "times, places and manner" of holding congressional elections, and that
there really is no serious argument to be made that Congress lacks the
authority to set a date for congressional elections. Therefore, Louisiana
must obey the federal law, and alter its own election law.

Louisiana, starting in 1978, has used a blanket primary in September or
October. If anyone polls at least 50% of the vote in the blanket primary,
that person is elected and no election is held in November. This happens 80%
of the time.

The Souter decision does not set forth what a state must do to be in
compliance with the federal law. However, it is possible that the ruling
could be used to attack election procedures for Congress used in Florida and
Oklahoma. Those states omit the office of U.S. Representative from the
general election ballot, if there is only one candidate who has qualified for
the ballot (Oklahoma doesn't permit write-ins; Florida won't print write-in
space on the general election ballot unless a write-in candidate has filed by
July).

Mike Foster, Governor of Louisiana, is said to favor retaining the blanket
primary system, by moving the date of the first election to November, with
any needed run-off in December.

However, since the state must make some change, it is possible that the
legislature will end the blanket primary system, at least for congressional
elections. The legislature is not scheduled to meet until April 1998, but
the Governor could call an earlier special session.

On December 4, the Colorado Secretary of State asked the U.S. Supreme Court
to overturn the July 28, 1997 Tenth Circuit opinion American
Constitutional Law Foundation v Meyer, 120 F 3d 1092, which said that
states cannot require petition circulators to be registered voters. That
decision also said that states cannot force paid petition circulators to wear
badges showing their name and the telephone number of their employer.

On November 17, U.S. District Court Judge David F. Levi upheld California's
blanket primary law, against a challenge brought by the state's Democratic,
Republican, Libertarian and Peace & Freedom Parties. Calif.
Democratic Party v Jones, civ S-96-2038 DFL, eastern district
(Sacramento). All four parties plan to appeal.

The California blanket primary law has not been used yet, although it will
now be used for the June 1998 primary. It requires that a single primary
ballot be printed and distributed to all primary voters. This primary ballot
will contain the names of candidates from all eight qualified parties
(however, it will not contain the names of any independent candidates).
Primary voters will be able to vote for any listed candidate. Thus it will
be possible for the members of any particular party to be outvoted by
non-members, and the choice of a party's nominee will not necessarily be in
the hands of the party's members. This is particularly true in the case of
California's minor parties.

The decision is 40 typed pages. The first ten pages describe the new law,
describe different primary systems in other states, and explain that a
similar primary exists in Alaska, Washington, and Louisiana. The next four
pages mention that the State Supreme Courts of Washington and Alaska have
upheld the constitutionality of the blanket primary.

Pages 15 and 16 get to the heart of the judge's opinion: he expresses the
view that there isn't much difference between a blanket primary, and an open
primary. Open primaries confine a voter to voting in the primary of just one
political party, but give a primary voter the freedom to decide which party's
primary ballot to choose. Almost half the states have open primaries.

Levi writes "Yet while the interest in determining who will vote in a party's
primary is one protected by the First Amendment, and is undoubtedly an
important interest, this is not the end of the inquiry."

"If it were, then open primaries would also be unconstitutional upon any
party's objection: an open primary, every bit as much as a blanket primary,
permits voters who are not registered in a party to vote in that party's
primary. But many of the States have some version of an open primary and to
invalidate them all on this theoretical ground would be an extraordinary
intrusion into the complex and changing election laws of the States and would
remove from the American political system a method for candidate selection
that many States consider beneficial and which in the uncertain future could
take on new appeal and importance."

On page 18, Levi cites Lightfoot v Eu, a 1992 9th circuit
opinion which denied that the constitutional guarantee of free association
protected the Libertarian Party's right to nominate by convention, in cases
when the primary had not produced a Libertarian nominee. Pages 19 and 20
conclude that political parties do not have the same right to freedom of
association that purely private associations do, citing the "white primary
cases" of the 1940's.

Pages 21 through 29 rebut the political party's arguments that the blanket
primary will harm them. Levi belittles the idea that many voters will
deliberately vote for a major party candidate whom they don't like, in order
to embarrass the major party which they don't support (for example, some
Republicans voted for George Wallace in Democratic presidential primaries in
1964, 1972 and 1976 in open primary states such as Michigan and Wisconsin, in
order to embarrass the national Democratic Party). Levi also doubts that
many primary results will be changed by the switch to a blanket primary.

In a footnote he dismissed the concerns of California's minor parties, saying
"The minor parties rarely have contested primaries" and that even when they
do, "Those non-party members who vote for minor party candidates at the
general election are most likely voters whose preferred candidates were not
selected in the primary of a major party."

Although Levi acknowledged the argument of the major parties that it will now
cost far more for candidates in a primary to campaign (for example, a
Republican running in a contested Republican primary formerly only had to
reach the registered Republicans; now such a candidate must campaign among
all voters, two and one-half times as many voters), he didn't express an
opinion about it.

The Democratic Party had complained that the party's national rules don't
permit open presidential primaries (except that Montana and Wisconsin have
exemptions). Levi dismissed this point by saying, "This is a choice for the
parties to make, and they can do as they please without interference from the
State" (in other words, they are free to refuse to seat delegates elected
from California).

Levi also dismissed Democratic and Republican Party objections that their
state governing bodies consist partly of the appointees of the party's
nominees for public office. Under the blanket primary, some party nominees
will have won primaries even though they weren't the choice of their own
party's members. Levi said the parties are free to change the way they make
appointments to their own governing bodies.

On pages 32-39, Levi discusses the state's interest in having a blanket
primary. He determined that a state has an interest in encouraging the
voters to elect moderate officeholders who will more easily compromise. He
also found that a state has an interest in empowering voters who are
registered "Independent" (under case law, all of California's 8 qualified
parties were free to decide for themselves whether to permit independents to
vote in their primaries, but none of them had chosen to do so; therefore,
independents couldn't vote in partisan primaries).

Levi also found that a state has an interest in giving more power to members
of the weaker major party who live in districts where that major party is far
outnumbered by members of the other major party.

Under the old law, only members of the dominant party (in a district
dominated by that one party) have a realistic chance to help choose their
district's representative.

Levi concludes, "The court finds that the parties have succeeded in showing
that the blanket primary imposes a significant but not severe burden on their
associational rights". Therefore, the law is constitutional.

The U.S. District Court decision upholding the blanket primary law, to be
influential, ought to have faced up to the fact that the U.S. Supreme Court
has several times ruled that a party's right to decide for itself who votes
in its primary, is protected by the First Amendment. The U.S. Supreme Court
has said:

1. "It is well settled that partisan political organizations enjoy freedom of
association protected by the First and Fourteenth Amendments. Freedom of
association means not only that an individual voter has the right to
associate with the political party of her choice, but also that a political
party has a right to 'identify the people who constitute the association,'
and to select a standard bearer who best represents the party's ideologies
and preferences." Eu v San Francisco County Democratic Central
Committee, 489 U.S. 214 (1989), at page 224.

2. "Freedom of association would prove an empty guarantee if associations
could not limit control over their decisions to those who share the interests
and persuasions that underlie the association's being... The inclusion of
persons unaffiliated with a political party may seriously distort its
collective decisions -- thus impairing the party's essential functions -- and
thus political parties may protect themselves from intrusion by those with
adverse political principles". Democratic Party of the U.S. v La
Follette, 450 US 107 (1981), at 122.

3. "Freedom of association includes partisan political organizations."
Tashjian v Republican Party of Connecticut, 479 US 208 (1986),
at 214.

Levi ignored these quotes. He also ignored a 1995 9th Circuit opinion,
Ziskis v Symington, 47 F 3d 1004, which says "Given the state's
interest in protecting the associational rights of party members, the
state may legitimately allow political parties to close their primaries to
nonmembers." (emphasis added). California is in the 9th circuit and
Levi is charged with following its precedents, yet he didn't mention
Ziskis.

Levi's footnote disposing of minor party complaints is incomplete and
factually erroneous. The Peace & Freedom Party has had more contested
primaries for statewide office than it has had non-contested primaries for
statewide office. Every Peace & Freedom presidential primary for the
last twenty years has been fiercely contested. In the past, candidates in
those primaries (or the party itself) did manage to raise enough money to
send mail to its registered voters, so that those voters had some idea of who
they were voting for or against. But under the new law, it will be
impossible for Peace & Freedom candidates, or the party itself, to
communicate with all 15,000,000 registered voters, and the outcome of the
primary will be in the hands of voters who will not be members of the party
and who won't know much about its competing candidates.

Evidence was presented at the trial that in Washington state and in Alaska,
where minor party candidates are listed on the blanket primary, the vote for
minor party candidates in those primaries is about as high as it is in the
general election. In Washington, the median vote for minor parties in both
the primary and in the general is 3%. In Alaska, the median vote for minor
party candidates in the primary is actually higher than it is in the general
election. If the same behavior holds true in California in 1998, the vast
majority of voters who vote for minor party candidates in primaries will be
well-meaning sympathizers of those parties who are not party members. They
will have little basis for making an informed choice, since the mass media
does not cover contested minor party primaries.

No harm is done in Washington state, since there, minor parties are not
permitted to have contests in the primary. Minor parties choose their
nominees earlier, at a convention; the choice is listed on the primary, only
to determine whether the nominee has enough support to justify being placed
on the general election ballot.

But in Alaska, the blanket primary has harmed minor parties. In 1986, the
Libertarian Party had a contested primary for Governor. One of the two
candidates, Mary O'Bannon, had moved out of the state before the primary was
even held, yet her name remained on the primary ballot. She won the primary
against Ed Hoch, the choice of the party organization. At the general
election, O'Bannon's name was listed on the ballot as the Libertarian
candidate for Governor, yet there was no campaign for her, since she wasn't
there. With no campaign, the party failed to poll 3% for Governor and lost
its qualified status. If the primary had been limited to party members, who
were informed about the race, Hoch would have won; but with the entire Alaska
electorate making the (uninformed) choice, the primary results were
disastrous for the party.

Levi's point that the blanket primary is not very different from an open
primary, is possibly correct. But it is not logical for him to assume that
open primary laws couldn't possibly be unconstitutional. An open primary
might very well be un-constitutional should a party which is forced to submit
to it, ever complain. In 1972, the U.S. Supreme Court invalidated every
state's election law, by ruling that voter duration of residency requirements
were unconstitutional. In the 1960's, the "one man, one vote"
reapportionment decisions forced every state to re-do its legislative
districts. Just because a ruling has a major impact on many states, doesn't
mean that it is wrong.

Finally, Levi ignored the point that states have a compelling interest in
preventing crowded ballots. If the blanket primary had been in effect in
California in 1996, there would have been 22 candidates for president listed
on the primary ballot.

The Document of the Copenhagen Meeting, part of the Helsinki Accords which
the United States signed in 1990, says "We solemnly declare that among those
elements of justice which are essential... are the following: ..a clear
separation between the State and political parties; in particular, political
parties will not be merged with the State".

A system in which the government can intervene in the affairs of political
parties, and tell them that they must give non-members the same power that
their own members enjoy, is not a free system. Judge Levi is right to extol
the virtues of experimentation. If a state wishes to experiment with an
election system in which all voters participate in all rounds of voting, it
is free to choose non-partisan elections. If a state is concerned about the
lack of voting power of members of parties too weak to win general elections,
it is free to try proportional representation. But, under the First
Amendment's guarantee of free association, no state may tell parties that
their own members have no more voice in their own organization, than
non-members do.

Last month, the Wyoming Committee (headed by the Secretary of State) which is
writing a bill to revise the election code, voted to set the petition and
vote tests for new parties at 2% of the last vote cast. This is an
improvement over the committee's earlier decision to set the tests at 3%.
Activist Bill Strickland of Riverton worked very hard to achieve this result.
Of course, the change won't happen until the 1998 session of the legislature
passes the bill, but the bill probably will pass.

On November 4, Denise Winebrenner Edwards was elected to the Wilkinsburg,
Pennsylvania borough council. Although she was a Democratic Party nominee,
she is also a leader of the Communist Party, a fact which was well known
during the campaign.

On November 21, U.S. District Judge Robert Hinkle, a Clinton appointee,
upheld the January start date for minor party and independent candidate
petitions (for office other than president). Reform Party of Florida v
Mortham, 4:97cv347-RH.

The case had been filed by the Reform Party, which faces a 1998 requirement
of 242,337 valid signatures, if it wishes to run any candidates for statewide
office. Although this number of signatures (3% of the number of registered
voters) has been upheld by federal courts in Florida, no Florida lawsuit had
ever been filed on the subject of how soon petitions may begin circulating.
The party pointed out that there is no start date for petitions for
presidential candidates in Florida, and since the lack of a start date for
president seems to create no problems for election administrators, it seems
logical that there doesn't need to be a start date for other minor party and
independent candidate petitions either.

Judge Hinkle didn't even mention that argument. He merely said that since
the U.S. Supreme Court had upheld the Georgia ballot access laws in 1971 in
Jenness v Fortson, and since Georgia had had a similar start
date, therefore the Florida start date must be constitutional.

The trouble with that reasoning is that the plaintiff in
Jenness, the Socialist Workers Party, didn't complain about the
Georgia start date. This is true of the other cases Hinkle cited as well
(one on the number of signatures required, and one on the petition
deadline). Therefore, comments on the start date in the other cases are
"dicta", not controlling precedent. The Reform Party hasn't decided whether
to appeal.

Oklahoma has finally released new voter registration forms, which list the
Reform Party as well as the Democratic and Republican Parties. The Reform
Party has been qualified in Oklahoma since June 1996, yet it had to wait 18
months, and bring a lawsuit, before the state reprinted the forms.

On November 5, the Reform Party filed a lawsuit against the Federal Election
Commission, charging that the law under which there are always 3 Democrats,
and 3 Republicans, on the FEC, and no others, is unconstitutional. The
lawsuit also sues the major parties for violating campaign finance laws
during the 1996 campaign. Nat. Comm. of the Reform Party v Democratic
Nat. Comm., c97-4048VRW, nor. dist., California. A second lawsuit,
Perot '96 v FEC, 97-4048, filed in Washington, D.C. a week
earlier, seeks to force the FEC to make a decision about whether Perot's
exclusion from the debates last year violated FEC guidelines.

On October 31 -- November 2, the Reform Party held a national convention,
elected national officers, established a National Committee, and passed a
constitution. The convention was in Kansas City, Missouri. It was attended
by 500 delegates from 45 states and D.C. Ross Perot addressed the meeting on
Saturday evening, acknowledging that he had made some political mistakes
during his presidential campaigns.

The party's constitution calls for a national committee composed of the
Executive Committee and three members from each state. The Executive
Committee consists of the Chair, the Vice Chair, the Secretary, the
Treasurer, and the heads of the six standing committees (rules, issues, party
building, finance, public relations and communications).

State parties are subject to losing accreditation if any national convention
should be called, and the state fails to fill at least one-fourth of its
delegate slots. The definition of "party member" is left to the various
state parties. The constitution can only be amended by a two-thirds vote at
a national convention.

Each state party is entitled to three delegates to a national convention,
plus delegates equal in number to that state's membership in the U.S. House
of Representatives.

The judges seemed uninterested in asking about the theory under which the
original 3-judge panel of the 9th circuit had struck down term limits, which
was that the initiative was invalid since the voters had not been told that
the term limits were lifetime limits. Nor were there many questions about
the theory that the U.S. District Judge had used to strike down the term
limits, that state term limits are probably constitutional, but lifetime term
limits aren't.

Instead, most of the hearing centered on whether anything in the Constitution
forbids the states from imposing term limits. Also, there were questions
about the conflict between the California Supreme Court (which had upheld the
initiative) and the earlier federal ruling. Judge Hawkins asked if a state
could ban lawyers from serving as legislators; the attorneys defending term
limits were uneasy with that question, but said "no".

The Libertarian Party won 14 partisan elections in Pennsylvania and 8
non-partisan elections in other states; New Party members were elected to
non-partisan office in Maryland, Minnesota and Montana; Green Party members
were elected to non-partisan office in Minnesota, North Carolina and
Virginia.

The petitioning chart is omitted from this B.A.N., but it will
return in the next issue. Changes since the November 1 issue: (1) the 1998
Pennsylvania petition requirement is known now, and will be 24,300
signatures; (2) the Reform Party is no longer qualified in Virginia, since it
failed to poll 10% for any statewide race last month; (3) the Natural Law
Party has given up trying to qualify as a party in Ohio for 1998, and will
instead use its 21,000 signatures for 2000; (4) the Green Party has almost
7,000 signatures in Michigan; (5) the Libertarian Party has 1,500 signatures
in Hawaii, and 1,400 in New Hampshire.

Last month, the Populist Party won a judgment of $2,000,000 in a jury lawsuit
against the party's former attorney. Wassell v DeCaro, federal
court, Pittsburgh, Pa. The case was in federal court because the plaintiff
and defendant are in different states. The judgment was for legal
malpractice. In 1991, the party had hired an attorney to file a libel
lawsuit. The attorney filed the case but handled it very badly. To win this
malpractice case, the party had to show not only that its attorney did a bad
job, but that it probably would have won if he had done a normal job.

The Populist Party placed fifth in the 1992 presidential election, but didn't
run a presidential candidate in 1996.

Ballot Access News names J. Bradley King, Co-General Counsel of
the Indiana Election Division of the office of the Secretary of State, as
"Election Administrator of the Year". King did more than any other
state election official during 1997 to improve ballot access laws. Entirely
on his own initiative, King wrote several provisions that were included in an
omnibus election law bill, provisions which will assist new and minor
parties. The bill, HB 1844, had a perilous journey through the legislature,
but was signed into law May 13, 1997.

The most important change permits a petitioning party to use a stand-in
candidate, for any office, on its petition. After the petition has been
submitted, but before September 1 of any election year, the stand-in can
withdraw and the petitioning group can replace him or her with the actual
candidate.

This change makes it possible for Indiana parties to petition before they
have chosen their final nominee. Since the petition signature requirement is
very high, and the petition is due in July, the change is essential for any
new party which won't choose its presidential candidate until the summer of
an election year.

Although Indiana administratively permitted stand-ins in the past two
presidential elections, there was no statutory authority to protect that
policy, and it could easily have been reversed. Now, however, the policy is
in the law.

King also initiated these provisions: (1) that the "sore loser" law does not
apply to presidential primary candidates; (2) an extension of the deadline
for filing as a write-in candidate from 74 days before the election, to 50
days before; (3) when petitions are checked, a voter's signature will not be
rejected due to a minor variation in the name or address (such as a missing
middle initial); (4) an easing of the number of signatures needed in very
small political units.

During 1997, state elections officials in Arkansas, Hawaii, Kentucky, New
York, North Dakota, and Virginia also helped persuade legislatures to improve
ballot access laws, or made significant favorable administrative rulings.
State elections officials in Maine and West Virginia tried to get legislative
improvements in 1997, but their legislatures balked. But in all these
instances, the ideas for the improvement came from the outside world, whereas
in King's case, he was the originator of the ideas for improvement, as well
as the force for getting them enacted.

King received his J.D. from the College of William and Mary and is a member
of the California and Indiana bars. He has long been interested in ballot
access, having written on the subject during law school. From 1985 to 1990,
he served as attorney for the legislative election committees. He was chief
lobbyist for the City of Indianapolis from 1990 until 1992, and has since
served as counsel to the State Election Board (now the Election Commission).
King said "although Indiana is a conservative state, with strong major
parties, everyone can support the elimination of needless obstacles to ballot
access. By doing so, we not only avoid wasting taxpayer money in litigation;
we help keep the entire voting process adaptable and thriving."